People v. Hilton

• Decision Date: 28 February 1989
• Citation: 535 N.Y.S.2d 708,145 A.D.2d 352
• Parties: , 147 A.D.2d 427 The PEOPLE of the State of New York, Respondent, v. Michael HILTON, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 708

535 N.Y.S.2d 708

145 A.D.2d 352, 147 A.D.2d 427

The PEOPLE of the State of New York, Respondent, v. Michael HILTON, Defendant-Appellant.

Supreme Court, Appellate Division First Department.

Feb. 28, 1989.

S. Krantz, New York City, for respondent.

L.M. Richman, New York City, for defendant-appellant.

Before SULLIVAN, J.P., and CARRO, MILONAS, ROSENBERGER and WALLACH, JJ.

MEMORANDUM DECISION.

Judgment, Supreme Court, New York County (Richard Carruthers, J.), rendered May 29, 1986, convicting defendant, after a jury trial, of burglary in the first degree [P.L. Sec. 140.30(2) ], robbery in the first degree [P.L. Sec. 160.15(3) ], attempted robbery in the first degree [P.L. Secs. 110.00, 160.15(1) ], assault in the first degree [P.L. Sec. 120.10(4) ], and assault in the second degree [P.L. Sec. 120.05(1) ], and sentencing him, as a second violent felony offender, to indeterminate concurrent prison terms of twelve and one-half to twenty-five years on the burglary count, seven and one-half to fifteen years on the attempted robbery and first degree assault counts, three and one-half to seven years on the second degree assault count, and a consecutive term of eight to sixteen years on the first degree robbery count, unanimously reversed, on the law, count two of the indictment dismissed, and the matter remanded for a new trial with leave to the People to re-present any appropriate charges to another Grand Jury.

On appeal, defendant argues, inter alia, that the lower court erred when it discharged, without sufficient reason, a sworn juror during the trial. We agree. Accordingly, defendant's conviction must be reversed and a new trial ordered. See e.g., People v. Anderson, 70 N.Y.2d 729, 730, 519 N.Y.S.2d 957, 514 N.E.2d 377.

CPL Sec. 270.35 only permits dismissal of a sworn juror when that juror is found to be "grossly unqualified." The Court of Appeals has made it clear that while a court should "lean toward disqualifying a prospective juror of dubious impartiality" during voir dire, dismissal of a sworn juror is an entirely different matter and may only be done when "it becomes obvious that a particular juror possesses a state of mind which would prevent the rendering of an impartial verdict." People v. Buford, 69 N.Y.2d 290, 298, 514 N.Y.S.2d 191, 506 N.E.2d 901, quoting from People v. Blyden, 55 N.Y.2d 73, 78, 447 N.Y.S.2d 886, 432 N.E.2d 758, and dissenting op of Mahoney, P.J., in People v. West, 92 A.D.2d 620, 622, 459 N.Y.S.2d 909; CPL Sec. 270.20(1)(b). The Court of Appeals has explained further that in conducting an analysis of whether a sworn juror meets the rigorous "grossly unqualified" standard "the trial court may not speculate as to the likelihood of partiality, but rather, must be convinced, after a probing and tactful inquiry, that the sworn juror will be unable to deliberate fairly and render an impartial verdict." People v. Cargill, 70 N.Y.2d 687, 688-689, 518 N.Y.S.2d 792, 512 N.E.2d 313; see People v. Anderson, supra; People v. Buford, supra, 69 N.Y.2d at 298, 514 N.Y.S.2d 191, 506 N.E.2d 901.

Here, the discharge was unsupported by any objective indicia of juror partiality. To the contrary, the juror stated unequivocally that her contact with a defense witness, which involved a single, fleeting encounter at a party fifteen to sixteen years prior to trial, would "definitely" not affect her ability to sit as a juror. Cf. People v. Buford, supra at 299, 300, 514 N.Y.S.2d 191, 506 N.E.2d 901. Nor was the discharge supported by the "probing and tactful inquiry" required by People v. Anderson, supra, and People v. Cargill, supra. Indeed, in reaching its decision to discharge the juror, the court stated that it had no way of assessing the juror's bias.

Moreover, the court applied a standard other than "grossly unqualified" as mandated by CPL Sec. 270.35. This is apparent from the court's erroneous ruling that jurors who had "prior contact with any of the witnesses" must, on that basis, be excluded, but see People v. Rentz, 67 N.Y.2d 829, 830, 501 N.Y.S.2d 643, 492 N.E.2d 771, and by the court's inappropriate comparison of the standard used to dismiss a sworn juror with dismissal of a juror during voir dire. See People v. Buford, supra, 69 N.Y.2d at 298, 514 N.Y.S.2d 191, 506 N.E.2d 901.

Upon this record, we find that the juror was improperly discharged. In that regard, we note that the People's claim that this error was not preserved for review is without support in the record which establishes that defense counsel satisfied the requirements of CPL Sec. 470.05(2) by clearly and specifically stating that she objected to the People's motion to dismiss the juror and that such objection was premised on the fact that the minimal contact between the juror and the witness did not warrant disqualification. She need not have said more. Cf. People v. Fleming, 70 N.Y.2d 947, 524 N.Y.S.2d 670, 519 N.E.2d 616; People v. Love, 57 N.Y.2d 1023, 457 N.Y.S.2d 474, 443 N.E.2d 948; People v. West, 56 N.Y.2d 662, 451 N.Y.S.2d 711, 436 N.E.2d 1313.

Also at issue on this appeal is whether the People met their burden of proving that defendant used or threatened the use of a dangerous instrument as required for a conviction under P.L. Sec. 160.15(3). We are persuaded that this burden was not met.

At trial, Cheryl Simmons testified that when she opened the door to her mother's apartment, she saw a man standing an arm's length away from her with his hand pointing forward in his pocket. According to Cheryl, the man claimed to have a gun and threatened to kill her and her daughter unless his demands for money were promptly met. Neither Cheryl nor any of the other victims, however, saw a weapon during the incident. Nor was any...